Ricci Opens Up Businesses To More Lawsuits?

Via Mark Thompson, Ilya Somin argues that today’s decision in Ricci will potentially open employers up to even more lawsuits alleging race-based discrimination.

Justice Kennedy’s majority opinion holds that an employer may not use race-conscious measures to try to avoid “disparate impact” liability under Title VII of the 1964 Civil Rights Act unless it “can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute.” A disparate impact lawsuit is a case alleging discrimination by the employer on the grounds that its hiring or promotion standards disproportionately disadvantage minority applicants, even if the employer wasn’t deliberately trying to discriminate against them.

The Court’s ruling makes life more difficult for employers trapped between the Scylla of Title VII disparate impact liability and the Charybdis of “disparate treatment” suits by white employees (“disparate treatment” suits are cases alleging traditional intentional racial discrimination). If a business adopts a race-neutral hiring or promotion standard that results in few or no minority hires or promotions, it is potentially vulnerable to a disparate impact lawsuit. As several Supreme Court cases make clear, that can happen even if the business was not intentionally trying to disadvantage minorities. But if the business adopts race-conscious measures to try to shield itself from liability (e.g. – by practicing affirmative action, adopting a standard that is more favorable to minority applicants, and the like), it opens itself up to “disparate treatment” lawsuits by whites, such as one the filed by the New Haven firefighters in Ricci.

To avoid this dilemma, business groups have long sought to persuade the courts to interpret Title VII to shield them from liability for race-conscious hiring policies that are intended to prevent disparate impact lawsuits. The Equal Employment Advisory Council, a group representing numerous large corporations and other businesses, filed an amicus brief in Ricci urging the Court to rule for New Haven for precisely this reason.

The five conservative justices weren’t buying that argument, however.

Not having had an opportunity to read Ricci yet, I won’t evaluate Somin’s argument–I just found it to be an interesting one.

FILED UNDER: Law and the Courts, , , , ,
Alex Knapp
About Alex Knapp
Alex Knapp is Associate Editor at Forbes for science and games. He was a longtime blogger elsewhere before joining the OTB team in June 2005 and contributed some 700 posts through January 2013. Follow him on Twitter @TheAlexKnapp.


  1. ac halle says:

    When do ‘whites’ get a say in all of this, friend?
    Or is this continuation in abstentia.
    Her ruling, et.al. are as racist as can be.
    Any body going to call her sorry ass on this?
    Any body.
    No nevermind.
    This crap is over.

  2. steve says:

    I believe the problem here is a poorly written law. Since I run a small corporation, I would like for Sotomayor’s interpretation of Title VII to be the one followed, but the SCOTUS chose the other option. Lawsuits are costly and time consuming. Federal suits tend to result in very large damages. What we really need if for Title VII to be rewritten. I think that when a law is this poorly written, and Congress will not address it, SCOTUS is the best group to make those decisions. This can certainly be seen as an activist decision. Reaching the opposite decision would have looked like an activist decision. Crappy laws beget crappy decisions.


  3. Zelsdorf Ragshaft III says:

    So Steve, are you saying at your corporation you do not hire the most qualified? Please let me know what goods you manufacture or what services you provide so I can avoid them like the plague. I do not want to spend my money, entrust my life, or have dealing with those who are not qualified to provide either the products or services I use.

  4. steve says:

    LOL. I am a physician at a trauma center, so you do not want to see me. I am assuming you misread (deliberately?), so I will try again.

    If I were to hire 5 new docs by giving a test, what would happen if all 5 top scorers were white? Title VII says that inequality in outcome is, by itself, adequate cause to bring a suit and assume discrimination. This current ruling by the court means that if I decide to try to avoid a suit by not hiring anyone, I can be sued by the 5 white test winners. As head of a small corporation, I am hosed either way.

    The conservative justices made an activist decision in an attempt to correct for a bad law, IMO. But, without the follow up of rewriting the law, so that you cannot sue without more proof than just unequal results, this finding stands as a bonanza for trial lawyers. The group that seems to usually win no matter what.


  5. An Interested Party says:

    The conservative justices made an activist decision…

    You mean conservatives do it too!?! Who knew…

  6. Eric Florack says:

    Seems to me the same objections were raised when Affirmative action was the big deal. As I recall those arguments were discounted because discrimination deserved punishment.

    That would be my answer now, as well.
    See also, Bed, lying in it.

  7. Drew says:

    Seems to me the Court effectively threw this back at the Congress (the people) and said “you idiots made (voted for) this bad law, you fix it. We don’t make law.”

    I’d suggest commentators quit bitching about the Court and start bitching to their Representatives.

  8. JKB says:

    To avoid this dilemma, business groups have long sought to persuade the courts to interpret Title VII to shield them from liability for race-conscious hiring policies that are intended to prevent disparate impact lawsuits.

    Or this could be simple stated as : business groups have long sought to persuade the courts to shield them from liability for racial discrimination against whites.

    Turns out the laws are for all people. Eventually, a balance will be achieved but today it was ruled that fearing a lawsuit is no reason to actively discriminate against another group. In all change, there is a period of transition where damage occurs. The damage from this change will be increased due to the same reason the 2nd Circuit rejected the suit out of hand, much of the judiciary believes in discrimination as long as the right group(s) benefits and will resist efforts to create a world where “all men are judged by the content of their character not the color of their skin.”

  9. sam says:


    I’d suggest commentators quit bitching about the Court and start bitching to their Representatives.

    That’s right–though I’d substitute ‘courts’ for ‘Court’ (Judge Sotomayor and her colleagues on the the 2d panel followed the district court judge in applying precedent–horror of horrors).

    One thing to come out of this is that, according to this story, some municipalities have moved away from written tests toward performance-based evaluations. As someone says in the article, a written test primarily evaluates your memory skills.

    In New Haven, city officials, having concluded that their written test was flawed, said there was another, trusted method to select firefighting lieutenants and captains that posed less of a disadvantage to blacks and Hispanics. That method relies largely on assessment centers where applicants are evaluated in simulated real-life situations to see how they would handle them.

    This seems to me quite reasonable.

  10. DavidL says:

    Two problems.

    One with respect to the Not So Wise Latina, to accept her Ricci decision, means that any business, government, entity can use the mere threat of lawsuit to engage in racial discrimination. That to say, that a fair result can be discarded if but one member of a statutorily protected class objects. The Sotomayor Standard isn’t that the objection is substained, but rather merely advanced.

    Two, the Supreme Court and Congress have created this legal fiction that cultural capital is proportional distributed among all demographic groups. Alas it is not. Yet we required to achieve outcomes based on a legal fiction.

  11. sam says:

    One with respect to the Not So Wise Latina, to accept her Ricci decision

    What do you mean “her” decision? And what’s the bullshit about the “Sotomayor Standard”? She and her two colleagues on the panel followed precedent in affirming a decision of the federal circuit judge, who himself was following precedent, and the entire 2d Circuit declined to overturn the panel’s decision.

  12. An Interested Party says:

    Just as liberals have Clarence Thomas, it’s nice to see that conservatives will soon have Sotomayor on the SCOTUS for years and years to come to fume over…enjoy, guys and gals…